Quote:
Originally Posted by BenMcr
I assume you mean Section G2. I haven't a clue - it's nothing I have any involvement it
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Let me open the door a bit then, shine the tiniest bit of light of bits of law the court in this case will need to address.
Fraud Act 2006
Section 2: (false representation)
1. A person is in breach of this section if he—
(a) dishonestly makes a false representation, and
(b) intends, by making the representation -
i. to make a gain for himself or another, or
ii. to cause loss to another or to expose another to a risk of loss.”
Computer Misuse Act 1990 (Scotland, similar elsewhere in UK)
1. A person is guilty of an offence if
(a) he does any unauthorised act in relation to a computer;
(b) at the time when he does the act he knows that it is unauthorised; and
(c) either subsection (2) or subsection (3) below applies.
2. This subsection applies if the person intends by doing the act
(a) to impair the operation of any computer;
(b) to prevent or hinder access to any program or data held in any computer; or
(c) to impair the operation of any such program or the reliability of any such data; or
(d) to enable any of the things mentioned in paragraphs (a) to (c) above to be done.
3. This subsection applies if the person is reckless as to whether the act will do any of the things mentioned in paragraphs (a) to (d) of subsection (2) above.
Confidentiality of Communications, Regulation 6:
1. Subject to paragraph (4), a person shall not use an electronic communications network to store information, or to gain access to information stored, in the terminal equipment of a subscriber or user unless the requirements of paragraph (2) are met.
2. The requirements are that the subscriber or user of that terminal equipment -
(a) is provided with clear and comprehensive information about the purposes of the storage of, or access to, that information; and
(b) is given the opportunity to refuse the storage of or access to that information.
By intercepting packets of data and separating or delaying their transmission or receipt Virgin Media falls foul of the above in several ways.
First, without overtly and directly agreeing with a customer that they may unilaterally delay packets of data to such an extent it causes significant impact to service, VM commit fraud if there is a benefit to them or a loss to the customer. No amount of excuse as to indirect delivery of supposed revised contracts can overcome this.
Second. It is an offence at criminal and civil law to interfere with a person's data, including the data by anyone that may use a computer system within a household, and cause restriction of use of a computer by slowing it down or reducing its ability to communicate with other computers (the Internet).
Third. It is an offence at criminal or civil law to intercept confidential information in transit or in situ on a computer by accessing packets of that data.
In each of these cases there would need to be a bilateral agreement where all parties to the agreement are informed of the full facts and consequences before Virgin Media was in a position to positively defend transgressions. It is the lack of adequate information as regards delivery of supposed contractual changes that negates excuse by this ISP. The interference with a single packet of data by using, separating or delaying it becomes unlawful in many respects,
each packet of data intercepted exacerbating the extent of unlawfulness. VM may be committing millions of crimes per client by intercepting data for any reason, especially so if it results in a loss of service to the client
If it were demonstrated that any DPI (Data Packet Interception) was instigated, or Phorm was subscribed to, then the case that VM breached contract inevitably succeeds, no matter how they say they represent their contracts (by link or other pseudo discovery) but especially if they misrepresented.
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